The Court Revisits Preemption

• Author: Dan Farber
• Position: Sho Sato Professor of Law and Chair of the Energy and Resources Group at the University of California, Berkeley
• Pages: 12-12

Page 12 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2011

By Dan Farber

Dan Farber is Sho Sato Professor of Law and

Chair of the Energy and Resources Group at

the University of California, Berkeley. He can

be reached at df arber@law.berkeley.edu.

I  C

A spate of non-

environmental c ases

has lawyers looking o n

with concern

The Court Revisits

Preemption

The Supreme Court’s recent pre-

emption decisions have been

controversial. e ABA has adopted

a resolution urging Congress to avoid

unnecessary preemption of state tort

law because of “the historic respon-

sibility states have exercised over the

health and safety of their populace.”

Environmentalists have been particu-

larly concerned about preemption in

recent years because some states have

been more aggressive in addressing

environmental issues than the federal

government, particularly in the area

of climate change.

e Supreme Court has an unusual

number of preemption cases on its

docket this year, giving it the oppor-

tunity to either clarify the doctrine or

make it even more confusing. Although

none of the current cases deals with en-

vironmental regulation directly, they

are being followed closely by environ-

mental lawyers.

e f‌irst of the decided cases was

Bruesewitz v. Wyeth. e Court held

that design-defect claims against vac-

cine manufacturers are preempted by

the National Childhood Vaccine Injury

Act. e law created a no-fault program

to provide compensation for vaccine-re-

lated injuries. In return for giving con-

sumers this remedy, Congress shielded

manufacturers from liability if an “in-

jury or death resulted from side ef‌fects

that were unavoidable even though the

vaccine was properly prepared and was

accompanied by proper directions and

warnings.” Justice Scalia’s majority opin-

ion read this provision as eliminating all

liability for vaccine design defects. Jus-

tice Sotomayor argued in dissent, how-

ever, that the provision addressed only

“unavoidably risky products,” rather

than products that actually could have

been designed more safely. e major-

ity seems to have been inf‌luenced by

Congress’s desire to lure manufacturers

into the vaccine market, despite some

legislative history supporting Justice So-

tomayor’s view.

In the second of the decided cases,

Williamson v. Mazda Motor State, the

Court found against preemption. e

justices held that tort suits alleging

that car manufacturers should have in-

stalled lap-and-shoulder belts are not

preempted by federal auto safety stan-

dards. In Geier v. American Honda Mo-

tor Co. (2000), the Court had reached

the opposite conclusion about preemp-

tion in considering an earlier version of

the same set of regulations. e Geier

Court emphasized that the regulation

gave auto-manufactur-

ers a choice between

airbags and other pas-

sive restraints. e

California state courts

had held that Geier

governed Williamson’s

claim against Mazda.

Justice Breyer’s majority opinion in

Williamson went to great pains to dis-

tinguish Geier. Breyer described the

choice between airbags and passive re-

straints as a “signif‌icant objective” of the

regulations in Geier because the agency

deliberately wanted to encourage a

phase-in of airbags and experimenta-

tion by manufacturers. In contrast, the

regulations at issue in Williamson were

not designed to preserve manufacturer’s

choice. e Department of Transporta-

tion had no doubt that “lap-and-shoul-

der belts would increase safety” and had

no reason to delay their use.

e concurring opinions in Wil-

liamson were critical of Geier. Justice

Sotomayor, who seems to be emerging

as an advocate for state tort remedies,

urged that Geier be restricted to its facts.

Justice omas rejected not only Geier

but the whole idea of implied preemp-

tion, except when compliance with

both federal law and state law is impos-

sible.

ere are several preemption cases

still to be decided this year. e one that

will probably get the most public atten-

tion is Chamber of Commerce v. Whiting.

is case is the furthest removed from

environmental law, but involves a hot

button issue. e case is a challenge to

an Arizona law requiring that employ-

ers check the immigration status of job

applicants and penalizing companies

that hire undocumented aliens.

Although preemption cases are ulti-

mately about federalism, they also raise

other issues relevant to environmental

law. e Court has waf‌f‌led over how

much to defer to administrative agen-

cies on preemption issues. Geier seemed

to suggest that agency views have great

weight, and the Bush administration

sought to exploit that opening by

including preemptive preambles in

regulations. As Williamson indicates,

the cases since Geier

have seemed less ea-

ger to f‌ind preemp-

tion based on agency

regulations, a good

development from

the point of view of

environmental law.

e Court’s preemption doctrine

has often been considered a muddle,

as exemplif‌ied by a recent blog post-

ing entitled “Supreme Court Federal

Preemption Decisions Continue to

Baf‌f‌le Defense Attorneys.” Bruesewitz

and Williamson suggest that the most

critical factor is the Court’s view of the

central purpose of a federal statute or

regulation. Such a purposive approach

might help provide a better focus to

preemption doctrine, but it remains

to be seen whether the remaining pre-

emption decisions of the term will take

a similar approach.